Farmers File Suits on Syngenta Over Viptera GMO Corn Release

CHICAGO - In 2012, China turned back a consignment of U.S. corn because trace amounts of a genetically modified corn trait - MIR 162 - it had not approved for importing was found in the shipment.

On Oct. 6, a suit was filed in the Northern District Court of Illinois by farmers in that state and Iowa seeking damages from Syngenta, blaming the company for loss of export revenue.

MIR 162 was introduced by Syngenta in 2009 under the brand name Agrisure Viptera. MIR 162 expresses a protein that Syngenta said will kill 14 yield-robbing insects once they begin feeding on the plant, including corn borers, corn rootworms, corn earworms, fall armyworms and multiple kinds of cutworms.

It was deregulated in 2010 by the U.S. Department of Agriculture for U.S. markets.

Since China's ban, U.S. farmers, including farmers in Iowa, allege that exports to China, then the third-largest foreign buyer of U.S. corn, has dwindled and they've lost substantial income as corn futures have fallen from $7 per bushel to $3.49 in the two-year span.

U.S. farmers have filed nine lawsuits in Illinois, Kansas, Missouri and Nebraska against Syngenta, charging the company with recklessly releasing the corn trait that was commingled with other corn before major trading partners approved the GMO.

The named Iowa plaintiffs in the Illinois court are Cronin Inc. and Jim Ruba, both in Sioux City; and Union Line Farms in Hopkinton.

Syngenta said all the suits "are without merit" and the National Corn Growers Association has distanced itself from them saying those farmers bringing legal action do not represent it or state-level growers' associations.

The suits allege Syngenta released Viptera even though some foreign trading partners - China, Japan and the European Union - had not approved MIR 162 for import into their food systems.

Instead, Syngenta is alleged to have told farmers they could plant the corn with confidence, expecting China's acceptance of the trait before the 2011 harvest.

But China did not approve MIR 162 and continues to date to withhold approval.

A separate action is now underway to concentrate the nine suits filed around the Corn Belt to be tried as a class action in Chicago.

"Syngenta believes that the lawsuits are without merit," said Paul Minehart, director of communications for Syngenta-North America, "and strongly upholds the right of growers to have access to approved new technologies that can increase both their productivity and their profitability.

"The Agrisure Viptera trait was approved for cultivation in the U.S. in 2010. Syngenta commercialized the trait in full compliance with regulatory and legal requirements.

"Syngenta also obtained import approval from major corn importing countries. Syngenta has been fully transparent in commercializing the trait over the last four years," Minehart said.

"During this time Viptera has demonstrated major benefits for growers, preventing significant yield and grain quality losses resulting from damage by a broad spectrum of lepidopteran pests," he said.

Lepidopteran is a class of insects typically having two pairs of wings covered with fragile scales and mouthparts specialized as a suctorial proboscis.

"It is understood that China has had a good amount of success with its corn production the last few years," said Ken Columbini, director of communications for NCGA. "From the reports we have heard, they have an ample surplus of domestically produced corn that, due to their agricultural policies, is not competitive with world grain prices.

"It stands to reason that the government would try to protect their domestic producers and utilize their corn before looking to import.

"The ban on MIR 162 is what they are using to protect their markets this time. In the past, they have protected their markets with other mechanisms not related to biotechnology."

In addition, Columbini said the plaintiffs are individual farmers acting on their own behalf and are in no way representative of the position of the NCGA or state affiliates.

Compounded wrongs

According to court documents filed in the Northern District Court of Illinois, farmers allege Syngenta misrepresented the export situation with the intent of getting farmers to continue purchasing and planting Viptera.

The suits alleges:

Syngenta claims just 13 percent of U.S. corn is exported, the rest is used domestically. However, according to the USDA Economic Research Service, as much as 20 percent of U.S. corn is exported and touts the U.S. as a major player in the world corn trade market.

It downplays China's impact on U.S. corn exports by claiming that China has purchased about .5 percent of all U.S. corn in the past five years.

In another document before the U.S. Judicial Panel for Multidistrict Litigation, it states that China purchased 5 million tons of U.S. during the 2012-2013 marketing, up from 47,000 tons in 2008.

The Illinois court document said, "Syngenta knew by 2010 China was projected to be a top-five importer of U.S. corn."

It quotes Michael Mack, Syngenta's chief executive officer, in the company's 2011 Half Year Earnings Report that China "continues to have the greatest impact on world markets, with increasing imports not just of soybeans, but also now of corn."

The suits also allege that Syngenta compounded the export problems by introducing its second-generation MIR162 hybrid - Agrisure Duracade - in 2014.

The suit quotes the National Grain and Feed Association as finding that China's rejection of U.S. corn, based strictly on the presence of MIR 162, lowered corn prices by 11 cents per bushel leading to a projected loss of $1.14 billion during the last nine months of the 2013-2014 marketing year, which ended on Aug. 31.

Consolidation

Adam Leavitt, a partner in the Chicago office of Grant and Eisenhofer and head of the firm's Consumer Practices group, said the effort to consolidate the various pending lawsuits across the Corn Belt, is an attempt to simplify the pre-trial process, "so that documents are filed and witnesses have to testify once, rather than multiple times."

In addition, although the number of plaintiffs in a class action suit are few, "they could represent hundreds or thousands of people who don't have to be brought in."

But the unnamed plaintiffs will get equal treatment in the final resolution.

"Plus some of the losses wouldn't be large enough to (individually) sue a large corporation," Leavitt said.

Leavitt was the lead counsel in the 2001 StarLink Corn Products Liability Litigation, another class action suit involving GMO corn that was consolidated in the Northern District Court of Illinois.